Lize de la Harpe, Senior Legal Advisor at Sanlam Corporate

The media is ablaze with the news that the Expropriation bill has been signed into law. I would like to unpack the right to property as set out in our Constitution – I believe this will better enable everyone to put the impact of this new act into perspective.

The principle of expropriation

The principle of expropriation is not new to South African law. Section 25(1) of the Constitution states that no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

But the section does not end there. Section 25(2) states that property may be expropriated only:

1.    in terms of law of general application for a public purpose or in the public interest and

2.    subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

Section 25(3) then goes on to state that the amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.

In fact, the Expropriation Act of 1975 – which predates the Constitution – has been governing the concept of expropriation for the last 50 years.

The new Expropriation Bill

The new Expropriation Bill – which will replace the Expropriation Act of 1975 – follows a 5 year consultation period. It largely aligns with section 25 of the Constitution and sets out how organs of State may expropriate land in the public interest for varied reasons.

As per the Governments media release issued on 23 January 2025, “expropriation may not be exercised unless the expropriating authority has without success attempted to reach an agreement with the owner or holder of a right in property for the acquisition thereof on reasonable terms. An expropriating authority is therefore obliged to enter into negotiations with the owner of a property required for such purposes. An expropriating authority must also attempt to reach an agreement on the acquisition of the property before resorting to expropriation – except in circumstances where the right to use property temporarily is taken on an urgent basis in terms of a provision in the legislation”.

Chapter 5 of the new Expropriation Bill deals with compensation and, inter alia, outlines the conditions under which nil compensation can be declared as just and equitable.

ENDS